1. If there is testimony indicating a sufficient similarity between the weapon used to commit
the charged crime and a weapon shown to be in the defendant's possession, the lack of
testimony positively identifying the weapon as that used in the crime goes to the weight,
not the admissibility, of the evidence.

2. When a defendant is charged with and convicted of murder in the first degree, any error in
the jury instructions related to the lesser included crime of manslaughter becomes
immaterial.

3. When the jury is instructed on lesser included crimes of first-degree murder, the jury
should first determine whether the State has proven first-degree murder. If the jury agrees
that the State has proven first-degree murder, it does not have to consider the lesser
included crimes.

4. An Allen-type instruction, see Allen v. United States, 164 U.S.
492, 41 L. Ed. 528, 17 S.
Ct. 154 (1896), which encourages the jury to make a decision, stating that "it must be
decided sometime" and asserting that another trial would be a "heavy burden on both
sides," has been disapproved of when given after deliberations have begun. However, if
such an instruction is given to the jury with the rest of the instructions prior to
deliberations, there is no reversible error even though the instruction incorrectly advises
the jury that the matter must be decided sometime.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause
and was on the brief for
appellant.

Kristi L. Barton, assistant district attorney, argued the cause, and Nola
Tedesco Foulston, district attorney,
and Paul J. Morrison, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Terry Scott-Herring appeals his conviction for first-degree, premeditated
murder, claiming that the district court erroneously admitted evidence and improperly instructed
the jury; that the prosecutor committed misconduct; and that he was denied a fair trial by
cumulative errors.

Scott-Herring was convicted of murdering his 23-year-old girlfriend, Mutindi Wanjiku
Njoroge, or Jiku as she was known to her friends. Police officers found Jiku dead in the driver's
seat of her car at approximately 2:35 a.m. on April 24, 2004. The officers found Jiku's car parked
along a residential street with the lights off and the engine running. Jiku had been shot twice in
the forehead. She had also been stabbed several times near her right ear.

Crime scene investigators found a wallet with Terry Scott-Herring's driver's license in the
center console of Jiku's car. The console also contained love letters from Jiku to Scott-Herring
and a kitchen-style steak knife. On the floorboard near Jiku's foot, officers found an empty
condom wrapper and a man's gold nugget ring. Although they did not find a gun or any cartridge
casings inside the car or in the vicinity of the car, they retrieved a bullet from the driver's door.

Police notified Jiku's mother, Rosemary Njoroge, who informed them that she had
received a strange call from Scott-Herring's mother, Barbara Becknell, at about 2:40 to 2:45 a.m.
the same morning. Barbara said she was calling to find out if Jiku was home. According to
Barbara, Jiku had left Barbara's house an hour earlier and had promised to call when she got
home to say she was safe. Barbara told Jiku's mother that Jiku had just called her to say she was
home safe. Barbara, however, was concerned because the number on her caller ID was unlisted
rather than Jiku's number. Jiku's mother told Barbara that Jiku was not home.

Police initially suspected Napoleon Sanchez, Scott-Herring's cousin, because Jiku had
applied for a protection from abuse (PFA) order against Napoleon 3 days before she died.
Napoleon and Jiku dated for several months until March 2004, when Napoleon left Wichita to
visit his father in California. Napoleon and Jiku had a violent relationship marked by verbal and
physical altercations.

While Napoleon was in California, Jiku began dating Scott-Herring. Napoleon returned to
Wichita a few days before Jiku was killed and was angry about the breakup with Jiku. Three days
before Jiku was murdered, Napoleon hit Jiku in the face and told her he would kill her, causing
Jiku to seek the PFA.

The day before the murder, Jiku told her mother that she was afraid Napoleon would kill
her and that she was going to hide from him at a girlfriend's house. Jiku also went to the police
station and asked them to serve the PFA on Napoleon because he had a gun and she was afraid he
would kill her.

Because of Scott-Herrings' friendship with Napoleon, police decided to interview him.
After their interview with Scott-Herring, the police eliminated Napoleon as a suspect. According
to Scott-Herring's statement, Napoleon had an alibi for the time of the shooting. Napoleon was
with a group of people at another location. Police later confirmed this information with other
witnesses.

However, Scott-Herring told police that Jiku was with him the day before and the night
she died. They had driven Jiku's car to a friends' house, and Jiku waited in the car while
Scott-Herring went inside and made arrangements with Napoleon and his friend, Jerell, to meet
some
girls from Salina later that night. Scott-Herring then took Jiku to his mother's house and left her
there while he drove her car back to pick up Napoleon and Jerell.

Scott-Herring told police that he and his friends, Napoleon and Jerell, were planning to
party with some girls from Salina at a vacant house two doors down from Barbara's house known
as the Red House. Scott-Herring told police that he drove Napoleon back to the Red House, and
Jerell followed them in another car with the girls from Salina. Instead of going inside the Red
House with the rest of the group, Scott-Herring walked to his mother's house to return Jiku's car
keys. While at his mother's house, Scott-Herring got into an argument with Jiku about the car.
Scott-Herring and Jiku both got in the car and drove around. Things calmed down and
Scott-Herring and Jiku began to express physical affection for one another. However, the two
then
resumed arguing when Scott-Herring refused to spend the night with Jiku and wanted to take her
car to go party with his friends and the girls from Salina at the Red House. Scott-Herring told the
police that he got out of Jiku's car at another friend's house, where he hung out for about 20
minutes. Scott-Herring and his friend then walked to the Red House, where they saw Napoleon
and Jerell outside with two girls from Salina.

The State charged Scott-Herring with one count of first-degree, premeditated murder. At
trial, Napoleon testified that he had given Scott-Herring an old Smith and Wesson .38 caliber
revolver before he left for California. Over Scott-Herring's objection, Napoleon identified a
photograph of Scott-Herring holding the gun and testified that Scott-Herring had the gun with
him on the night Jiku was murdered. Another witness also testified that she saw Scott-Herring
with a gun the week before Jiku's murder and identified the gun as the same gun Scott-Herring
was holding in the photograph. A firearms expert testified that Jiku was killed by a .38 Special
caliber bullet that could have been fired from four types of revolvers, two Smith and Wesson
models and two models of a Brazilian-made Smith and Wesson clone. The firearms expert
further testified that the general appearance of the gun in the photograph was similar to the four
types of guns that could have shot the .38 Special caliber bullet that killed Jiku.

Scott-Herring attempted to create reasonable doubt by pointing to Jiku's fear of Napoleon
and arguing that Napoleon was Jiku's killer. Unpersuaded by Scott-Herring's defense, the jury
found him guilty of first-degree, premeditated murder. The district court sentenced Scott-Herring
to life in prison. The matter is before us on Scott-Herring's direct appeal pursuant to K.S.A.
22-3602(b)(1).

ANALYSIS

Admission of the photograph

Scott-Herring claims that the district court erroneously admitted a photograph of him
holding a .38 caliber revolver. Scott-Herring objects to the admission of the photograph because
the State did not admit the murder weapon. According to Scott-Herring, the photograph was
unduly prejudicial because the State could only speculate that it was the murder weapon.

The first consideration in reviewing the admission of evidence is relevance. State v.
Baker, 281 Kan. 997, 1008, 135 P.3d 1098 (2006). Generally, all relevant evidence is
admissible
unless it is otherwise precluded by statute, constitutional prohibition, or court decision. K.S.A.
60-407(f). Relevant evidence is defined as "evidence having any tendency in reason to prove any
material fact." K.S.A. 60-401(b). Relevance is established by some "'material or logical
connection between the asserted facts and the inference or result they are designed to establish.'"
State v. Trotter, 280 Kan. 800, 809, 127 P.3d 972 (2006) (quoting State v.
Marsh, 278 Kan. 520,
530, 102 P.3d 445 [2004]).

Once relevance is established, the district court applies the evidentiary rules governing
the admission and exclusion of evidence either as a matter or law or in the district court's
discretion depending on the contours of the rule in question. Baker, 281 Kan. at
1008. Scott-Herring asserts that the applicable evidentiary rule is K.S.A. 60-445, which gives the
district
court discretion to exclude otherwise relevant evidence because its probative value is outweighed
by its prejudicial effect. Because the statute gives the district court discretion in admitting or
excluding evidence, this court must review the district court's decision using an abuse of
discretion standard. Trotter, 280 Kan. at 810. Judicial discretion is abused when no
reasonable
person would take the view adopted by the district court. The party alleging an abuse of
discretion bears the burden of proving such abuse. 280 Kan. at 810.

Crime scene investigators discovered a bullet in the driver's door of Jiku's car. A firearm
and toolmark examiner identified the bullet as a .38 Special and testified that, according to the
FBI database, it could have been fired by four different guns: a .38 Special caliber Smith &
Wesson, model 12; a .38 Special caliber Smith & Wesson, victory model; a .38 Special
caliber
INA, model 3; or a .38 Special caliber INA, model 1. All of these guns are revolvers
manufactured before 1958. The firearm and toolmark examiner further testified that the gun
Scott-Herring was holding in the photograph was a revolver and the general appearance of the
gun was consistent with the four guns that could have fired the bullet found in Jiku's car.
However, the firearm and toolmark examiner testified that he could not positively identify the
gun in the photograph as the murder weapon without having the actual gun.

Napoleon testified that he had given Scott-Herring an old, rusty Smith and Wesson .38
caliber revolver sometime in March before Napoleon went to California. One of Jiku's friends
testified that she saw Scott-Herring with the gun shown in the photograph the week before Jiku
died. Napoleon testified that he had seen Scott-Herring with the gun in the photograph on the
night of Jiku's death.

The photograph of Scott-Herring with the gun is relevant to establish his possession of a
gun resembling the possible murder weapon on the night of Jiku's murder. Scott-Herring argues
the "whole line of inquiry was too speculative to have any relevance." However, the State was
not required to prove that the gun in the photograph was the actual murder weapon for the
evidence to be admissible. If there is testimony indicating a sufficient similarity between the
weapon used to commit the charged crime and a weapon shown to be in the defendant's
possession, "the lack of testimony positively identifying the weapon as that used in the crime
goes to the weight, not the admissibility, of the evidence." State v. Trammell, 278
Kan. 265, 282,
92 P.3d 1101 (2004) (allowing witnesses to testify that a gun found in the defendant's possession
resembled the gun that had been used during an armed robbery). Scott-Herring attacked the
weight of the evidence by cross-examining the witnesses to highlight the State's inability to
positively identify the gun in the photograph as the murder weapon. We find no abuse of the
district court's discretion in admitting the photograph. Accordingly, this claim of error has no
merit.

Voluntary manslaughter instruction

Scott-Herring argues that the district court erroneously instructed the jury regarding
voluntary manslaughter because the district court added the following italicized language to the
PIK Crim. 3d 56.04(e) instruction defining heat of passion:

"Heat of passion means any intense or vehement emotional excitement which was
spontaneously provoked from circumstances. Such emotional state of mind must be of such
degree as would cause an ordinary person to act on impulse without reflection. The
provocation
must consist of more than mere words or gestures."

We need not address Scott-Herring's complaint because any error regarding the heat of
passion instruction is immaterial to Scott-Herring's conviction. "'[W]hen a defendant is charged
with and convicted of murder in the first degree, the correctness of instructions relating to
manslaughter becomes immaterial.'" State v. Horn, 278 Kan. 24, 43, 91 P.3d 517
(2004) (quoting
State v. Metcalf, 203 Kan. 63, 67, 452 P.2d 842 [1969]). Scott-Herring was charged
with first-degree murder. The district court instructed the jury on second-degree murder and
voluntary
manslaughter as lesser included crimes. Nevertheless, the jury convicted Scott-Herring of
first-degree murder, so any error in the voluntary manslaughter (heat of passion) instruction was
immaterial.

Prosecutorial Misconduct

Scott-Herring asserts that the prosecutor committed misconduct when he improperly
advised the jury to consider first-degree, premeditated murder before considering the lesser
included crimes. Scott-Herring complains of the following comments during the State's closing
argument:

"You also have a couple of other elements instructions, second-degree murder
[and]
voluntary manslaughter. Well, this is kind of a linear analysis, ladies and gentlemen. You first
analyze first-degree murder. You make your decision on that. After analyzing first-degree
murder,
if you do not find that it exists, only then do you move on. Only then do you start to analyze
second-degree murder and at the same time analyze voluntary manslaughter."

Issues of prosecutorial misconduct are reviewed using a two-step analysis. First, the court
must determine whether the prosecutor's comments were outside the wide latitude prosecutors
are
allowed in commenting on the evidence. If so, the court must then determine whether the
comments are plain error. State v. Hurt, 278 Kan. 676, 680, 101 P.3d 1249 (2004).

When the jury is instructed on lesser included crimes of first-degree murder, the jury
should first determine whether the State has proven first-degree murder. If the jury agrees that the
State has proven first-degree murder, it does not have to consider the lesser included crimes. See
Hurt, 278 Kan. at 682-83; PIK Crim. 3d 56.02-A; PIK Crim. 3d 56.03(B); PIK Crim.
3d 56.05(B).

According to Scott-Herring, the prosecutor's statements required the jury to unanimously
acquit him on the greater offense before considering the lesser offenses. Scott-Herring relies
on
Hurt to support his argument. In Hurt, the prosecutor advised the jury as
follows:

"It's only if you're not convinced, all 12 of ya, that he's guilty of premeditated, and then
you move
your way down and ask yourself, Well, certainly, he intended to but maybe it wasn't
premeditated."
278 Kan. at 680.

The Hurt court found that the prosecutor's comments were ambiguous and
potentially
subject to the interpretation that everyone had to find reasonable doubt about premeditated
murder
before the jury could consider any lesser included crimes. 278 Kan.. at 682. Because requiring
the
jury to unanimously acquit on first-degree murder before considering lesser included crimes
misstated the law, the Hurt court concluded that the prosecutor's comment was
outside the wide
latitude prosecutors are allowed in making closing argument. 278 Kan. at 684. Nevertheless, the
Hurt court found no ill will in the prosecutor's comments. 278 Kan. at 685. Noting
that the
defendant had been convicted of first-degree, premeditated murder, the greater crime, the
Hurt
court held that any error was harmless because the jury had been properly instructed on how to
consider the lesser included crimes in accordance with the PIK instructions. 278 Kan. at 685-86.

This case is factually distinguishable from Hurt. The prosecutor in this case
did not
specifically state or even imply that all 12 jurors had to acquit Scott-Herring of first-degree,
premeditated murder before considering the lesser included crimes. The prosecutor advised the
jury to analyze first-degree, premeditated murder first and, if the State had failed to prove it, then
move on to the lesser included crimes. The prosecutor's comments properly stated the law. Thus,
they were not outside the wide latitude prosecutors are allowed during closing arguments, and
there was no prosecutorial misconduct.

Allen-type Instruction

Next, Scott-Herring argues that the district court erred when it gave the pre-2005 version
of PIK Crim. 3d 68.12 (instruction amended in 2005), which Scott-Herring characterizes as an
Allen-type instruction, before the jury retired to begin deliberations. See Allen
v. United States,
164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (1896). The instruction given encouraged the
jury to make a decision, stating that "it must be decided sometime" and asserting that another
trial
would be a "heavy burden on both sides." Scott-Herring argues that this instruction misled the
jury
because the possibility exists that a defendant may never be convicted or acquitted. Instead, a
defendant's case may terminate in other ways such as a dismissal by the State or the court or a
dismissal due to a procedural error such as a speedy trial violation.

Scott-Herring objected to the instruction at trial. When a defendant objects to an
instruction, this court applies the following standard of review:

"'"When reviewing challenges to jury instructions, we are required to consider all the
instructions
together, read as a whole, and not to isolate any one instruction. If the instructions properly and
fairly state the law as applied to the facts of the case, and a jury could not reasonably have been
misled by them, the instructions do not constitute reversible error even if they are in some way
erroneous."' [Citation omitted.]" State v. Makthepharak, 276 Kan. 563, 568-69, 78
P.3d 412
(2003).

Although we have disapproved of using an Allen-type instruction when it is
given after
deliberations have begun, we have rarely reversed a defendant's conviction based on that error.
See, e.g., State v. Struzik, 269 Kan. 95, 112, 5 P.3d 502 (2000);
State v. Troy, 215 Kan. 369, 373,
524 P.2d 1121 (1974); State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971),
cert. denied
405 U.S. 927 (1972); State v. Oswald, 197 Kan. 251, 260-01, 417 P.2d 261 (1966).
We recently
rejected Scott-Herring's argument in State v. Anthony, 282 Kan. 201, 215-16, 145
P.3d 1 (2006).
Although the Anthony court applied a clearly erroneous standard because the
defendant did not
object to the instruction, its holding is phrased in terms of the standard that applies in this case as
demonstrated by the following excerpt:

"Even if it is not literally inevitable that 'all cases . . . must be decided sometime,'
inclusion of the
quoted language in this instruction does not render it clearly erroneous. If the instructions
properly
and fairly state the law as applied to the facts of the case, and a jury could not reasonably have
been
misled by them, the instructions do not constitute reversible error even if they are in some way
erroneous.[Citation omitted]" 282 Kan. at 216.

We recognize that the phrase "all cases . . . must be decided sometime" is not technically
correct because a case may be resolved in any number of ways that do not involve a jury's
verdict.
However, we do not believe this technical error in the language warrants the reversal of
Scott-Herring's conviction under our standard of review, which requires proper and fair
instructions
rather than technically perfect instructions. We note, however, that much of the concern with the
instruction which was given in this case has been addressed and remedied by the PIK committee.
PIK Crim. 3d 68.12, the deadlocked jury instruction, was modified by the committee in 2005,
and
now reads:

"Like all cases, this is an important case. If you fail to reach a decision on some or
all of
the charges, that charge or charges are left undecided for the time being. It is then up to the state
to
decide whether to resubmit the undecided charge(s) to a different jury at a later time. Another
trial
would be a burden on both sides.

"This does not mean that those favoring any particular position should surrender
their
honest convictions as to the weight or effect of any evidence solely because of the opinion of
other
jurors or because of the importance of arriving at a decision.

"This does mean that you should give respectful consideration to each other's views and
talk over any
differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any
differences and
come to a common conclusion.

"You may be as leisurely in your deliberations as the occasion may require and
take all the
time you feel necessary." PIK Crim. 3d 68.12 (2005 Supp).

The current version is a more accurate statement of a jury's responsibilities. Trial judges
should discontinue using the pre-2005 version of PIK Crim 3d 68.12.

Cumulative errors

Finally, Scott-Herring argues that he was denied a fair trial because of cumulative trial
errors.

"'Cumulative trial errors, when considered collectively, may be so great as to require
reversal of the
defendant's conviction. The test is whether the totality of circumstances substantially prejudiced
the
defendant and denied the defendant a fair trial. No prejudicial error may be found upon this
cumulative effect rule, however, if the evidence is overwhelmingly against the defendant.'
[Citations omitted.]" Baker, 281 Kan. at 1017 (quoting State v.
Engelhardt, 280 Kan. 113, 140-41,
119 P.3d 1148 [2005]).

Scott-Herring relies on the other errors he has raised in this appeal to establish cumulative
errors. Because we have found no errors, we find no basis for his claim of cumulative error and
affirm his conviction of first-degree, premeditated murder.